Features - Open Access to the Law: Internet Legal Publishing Changing the Face of the Legal System

Kumar
Percy is the Head of Reserve and Media Services for the University of
Texas Tarlton Law Library. He is a member of the State Bar of California
with a law degree from Tulane Law School and a MLIS from San Jose State
University.

Introduction

Finding the law is the
bread and butter of every lawyer in America. Gillian Hadfield of the University
of Toronto recently explained in the New York Times that society places a
market value on lawyers based upon how much more that they know about the
law than the average consumer. People are beginning to rethink that value,
as they are able to locate more legal information online for a less cost than
ever before. These changes are not only influencing consumer confidence; it
is forcing the legal community to evaluate basic principles, such as the meaning
of the rule of precedent. This article discusses the way that Internet legal
publishing is transforming the legal system.

Governmental
Internet Publishers

Computer technology has
enabled courts, legislatures, and agencies to publish their own materials
directly and without charging for access on the Internet. For example, statutes
are now regularly available online for free as soon as they are passed. Congress
releases all statutes on its website, Thomas (http://thomas.loc.gov/).
It also publishes bills, reports, hearings and the Congressional Record online.
These items are cross-indexed and easier to use than existing print resources.
State legislatures are similarly making their activities and laws available
through electronic means.

Agencies are also publishing
both formal and informal rulemaking on their own websites. Many of these
items are hard to find in print. For examples, FAA regulations are available
at http://www.faa.gov/. The Federal Trade Commission
publishes antitrust advisory opinions online at http://www.ftc.gov/. The EEOC releases its
Compliance Manual through http://www.eeoc.gov/.
Official FDA forms are on the FDA site, http://www.fda.gov/.
At the state and local level this list would include many administrative items
that were traditionally unavailable in print.

The availability of case
law is increasing on the net. The U.S. Supreme Court publishes its opinions
on the Court’s own website, http://www.supremecourtus.gov/.
A growing number of courts are also publishing opinions through Internet sources.
The Texas Supreme Court publishes its decisions on the court’s website (http://www.supreme.courts.state.tx.us/).
Other courts have used publishers who do not charge for access. As part of
an agreement between New Jersey Administrative Office of Courts and Rutgers
University School of Law – Camden, the law school publishes New Jersey state
court opinions. The opinions of many courts are available on services like
Findlaw and Cornell’s Legal Information Institute. Among their many services,
both websites republish selected government information.

Because the opinions are
available on the web, third party publishers can index several sites on a
single website. Although each of the 13 Federal Circuit courts has its own
Internet publishing source, Findlaw has created a standardized search engine
to find cases on each of the systems (http://guide.lp.findlaw.com/casecode/).

Finding
Governmental Websites

It is relatively easy
to find legal information online, as there are several indexes of government
websites. However, no single index is definitive. Federal websites are indexed
through the LSU Federal Government Agency Directory (http://www.lib.lsu.edu/gov/fedgov.html). Piper
Resources Index of State and Local Governments on the Web provides users with
access to most state and local websites (http://www.piperinfo.com/state/index.cfm).
Lastly, Findlaw is an index of legal information on the web. If all of these
fail to produce a desired website users can try a general index such as Yahoo
(http://www.yahoo.com)
or a reliable search engine such as Google (http://www.google.com/).

Pros
and Cons of Government Internet Publishing

Internet publishing has
unique benefits and shortcomings. One advantage is that even unmarketable
information will be published. John Joergensen explained in the online
journal LLRX.com that for a time Rutgers - Camden's website was the only
source for the New Jersey Administrative Reports. No other publisher was interested
in the item. Agency rulemaking has traditionally been difficult to locate
because it has a small niche market. State regulations were often unavailable
in print.

Governmental Internet
publishers can deliver information much faster than paper companies. Federal
statutes are available on Thomas soon after they are passed into law, and
the U.S. Supreme Court makes opinions available on the web almost immediately
after they are released. During the recent Florida election recount, the
Supreme Court website published briefs and opinions before any commercial
source, including Westlaw and Lexis. However, the commercial publishers usually
take longer to release cases because they spend time inserting value added
features, such as headnotes or citation indexing.

One significant problem
with Internet publishing is a lack of standardization. Because each organization
designs its own unique website, it is not possible to develop a single strategy
for using Internet published sources of law. The sites can change dramatically
overnight. Just as a website becomes familiar a revision can force a researcher
to relearn how to use the tool. Additionally, some Internet sources are difficult
to navigate, burying valuable documents within the website.

Updating a citation is
difficult with government websites. The US Code is available online through
GPO Access (http://www.access.gpo.gov/congress/cong013.html),
but GPO does not include case law annotations. Additionally, the code is
only as current as the latest official print version. On December 1, 2000,
titles 1-17 of the Code were current through January 23, 2000. The rest had
not been updated since January 5, 1999. The website has no suggestions about
how to update the code sections. Only experienced researchers will think
to look for more recent statutes on Thomas, the website from Congress.

Case law is even more
problematic. Cases older than 1990 are generally not available through free
Internet sources, with the exception of U.S. Supreme Court cases. Additionally,
cases on free websites lack editorial enhancements such as headnotes and links
to items cited within each document. Also, these sites do not have an updating
system that is as easy or accurate as commercial citation checking services,
such as Shepard’s or Keycite.

Legal Commercial
Web Site Publishers

For those willing to pay
a small fee, there are several commercial publishers that use the Internet
to compete with Westlaw and Lexis. Loislaw (www.loislaw.com)1,
Versuslaw (www.versuslaw.com),2
the National Law Library (http://www.itislaw.com/),3
and Quicklaw (http://www.quicklawamerica.com/)4 are several commercial
databases of legal information. As of this writing, each of these systems
is much cheaper than the two major competitors. Versuslaw offers a flat rate
of $6.95 a month for unlimited access. Quicklaw offers a flat $5.00 a search
charge, or a flat rate of $70 a month. National Law Library has a flat fee
of $49 a month. Loislaw offers a single jurisdiction for $59 a month or $139
for the entire database. Some of them offer special discounts for law schools.

Additionally, commercial
services offer enhanced features not available through free Internet sites.
These companies provide a consistent and well-documented search system. They
all have telephone assistance to help users access the databases. Their databases
often have more depth than free sites. For example, most of the commercial
website have cases that are much older than the government websites. Quicklaw
offers an annotated United States Code. The National Law Library offers a
brief bank and a legislative tracking service. Loislaw offers its own citation
checking system called GlobalCite,5 which both updates cases and annotates
statutes. Quicklaw is working on its own Quickcite product.

These companies provide
a professional option to augment government web publications. In a recent
article, Carolyn Elefant, a D.C. attorney, reported that by using free web
publications and Versuslaw she was able to write briefs that were as well
researched as her opposing counsel’s, which were probably created with much
more expensive research tools.

Internet publishing is
even affecting the larger commercial publishers. Lexis offers free case
law through their lexisONE service (http://www.lexisone.com/).6
It provides access to thousands of free forms, U.S. Supreme Court cases since
1790, and selected federal and state cases decided since January 1, 1996.
Researchers can use standard Lexis search strategies. The product does not
have the value-added features like access to Shepard’s or Lexis core notes,
but it does allow anyone to find recent case law for free.

Forms
Online

Some online publishers
are packaging legal information directly for the consumers. The best example
is the growth of legal forms online. Forms give people a framework to evaluate
their legal rights. Publishers market them by suggesting that consumers can
customize a form and have a lawyer check it for mistakes. The hope is that
a lawyer will charge less to review a form than to draft one from scratch.

LexisOne has thousands
of free forms, including some found in Mathew Bender publications. LawVantage
charges $100 to $500 for subscription access to forms that have been created
for lawyers. MyLawyer.com charges a flat fee for access to forms. They can
cost less than $20 each. For those with more complicated legal problems, MyLawyer
offers access to a telephone lawyer for less than $40 per call.

Other more advanced forms
are also available. Nolo press maintains Nolo.Com (http://www.nolo.com), where
it sells legal forms, legal books, and software to help create legal forms.
Findlaw includes court forms from most state and federal courts, tax forms,
and thousand of sample contracts.

There are other publishers
with legal specialization. Immigration forms are available from VisaLaw.com,
a service of Siskind, Susser, Haas & Devine. The site also includes information
about consulting with Immigration lawyers in the firm. Divorce forms are organized
by state in DivorceCentral.com. This site also includes links to state family
law information.

Consumer
Awareness of the Law

Internet publishing is
inexpensive and easy to use, and it is giving the lay public a greater access
to the law. Rutgers tracks usage of its legal databases by asking researchers
to complete a survey. In 1999, it was attracting 600 questions a day. It
also reported that 45% of those who answered the questionnaire were lawyers
or paralegals.The other 55% were not members of the legal community and
would not have a subscription to Westlaw or Lexis. This consumer information
trend could change the legal profession the way that it is disrupting the
medical community.

The Pew Internet &
American Life Project recently found that 70% of Internet users with health
problems are researching their ailments online. Medline and other online
health services are providing access to recent and credible medical information.
These services include consumer enhancements not yet available in law related
websites, such as an online medical dictionary available on Medline Plus (http://www.nlm.nih.gov/medlineplus/).
Dr. Tom Ferguson, a senior associate at Boston's Center for Clinical Computing,
a medical computing think-tank at the Harvard School of Medicine, believes
that this phenomenon is undermining physician’s traditional authoritarian
relationships with patients. Doctors are no longer a patient’s sole source
of information. It may be that Internet legal publishing will allow clients
to take a similar interactive role in their legal problems

Unpublished
Cases

Another impact of computer
technology is that lawyers are regularly citing opinions that are not published
in print reporters, even though most courts have rules against using “unpublished”
cases. Traditionally judges have designated which cases to publish, picking
those opinions that have significant discussions of legal issues. These become
part of American common law, the others are supposed to be forgotten by everyone
except the parties to the litigation. Until recently, if a case was not published
in print it was unavailable to the public. In a recent Texas Lawyer
article, Justice Hecht of the Texas Supreme Court explained that citation
rules were originally designed to insure that those who had the resources
to find unpublished cases did not have an unfair advantage over those without
the resources. Others argue that the judges have used the publication rule
to hide cases that are decided without the care given to a published opinion.
The critics fear that judges are less accountable for unpublished cases and
these cases have become an area of law which is distinct from the more reasoned
arena of the common law.

However, computer publishers
are releasing cases that were not certified for publishing. Lawyers are finding
the "unpublished" cases and arguing that they should be followed.
In fact, major publishing companies like Lexis and West Group make millions
of cases available that were not marked for publication. A search of Westlaw
found over 10,000 "unpublished" opinions from 1999 alone. Although
the Federal Reporter grows by ten volumes a year, the number of published
cases remains low. The Administrative Office of the United States Courts reported
that 20,769 or 78.1% of Circuit Court opinions were not published in the year
ending on September 30, 1999. With state cases the percentages of published
cases vary. Westlaw contains over 3,000 unpublished state cases from 1999.

The issue became the talk
of the legal community after an Eighth Circuit panel held that it was unconstitutional
for court rules to forbid citing "unpublished" opinions. The court
in Anastasoff v. U.S., 223 F.3d 898 -Opinion Vacated as Moot on Rehearing
En Banc by 235 F.3d 1054 (8th Cir., 2000) concluded that the Founding
Fathers established the federal judiciary with the understanding that judges
would use the rule of precedent. Therefore, rules that limit the precedent
are unconstitutional. The court was clear that a judge is still free to refuse
to follow poorly decided cases, but must first distinguish or overrule it.
State supreme courts, including Pennsylvania and Texas, are currently reevaluating
their own rules against citing "unpublished" opinions.

Conclusion:
Entering a New Age of the Law

Grant Gilmore wrote that
the advent of modern legal publishing in the 19th century fundamentally
changed the legal system. It allowed lawyers to see more cases and for the
first time analyze each one. This made the law more consistent. The Restatements
and Uniform Laws came out of that period. Gilmore believed that this transformed
the US from a country of men to a country of laws. Internet publishing is
beginning to have an equally great effect on the legal system. The law is
becoming more available to the lay public as well as more open to public scrutiny.

A nagging problem for
the bar has been how to help the “working poor” gain legal representation,
those who cannot afford a lawyer, but are not poor enough for legal aid.
As legal research costs decrease, legal representation fees may as well.
More immediately, legal assistance programs are now creating classes to teach
the public how to use the Internet for legal research. With this skill they
can more effectively represent themselves. Citizens are able to look up new
cases and legislation from the comfort of their own home, and at any hour
of the day. Even people with legal representation can better handle their
legal affairs by researching laws online.

Since
the O.J. Simpson case, the media has questioned if the legal system needed
a fundamental reform. The public will now be able to critique the system more
effectively. Thousands of people downloaded and read their first U.S. Supreme
Court opinions during the recent presidential election cases. Based upon their
own research, the lay public was able to evaluate the validity of the decision
for themselves. With the Internet, all of government is more open to the public.

Government groups are
responding to this heightened scrutiny. Reconsidering the rules about unpublished
cases indicates that courts know that all of their opinions will be scrutinized,
not just the published ones. In light of this closer examination, all judges
may now invest the same degree of care in writing every decision. Additionally,
as more unpublished cases become legally binding the law will grow more internally
consistent. As more agency rulemaking and legislative actions are open to
public scrutiny online, they too will become more consistent with other laws.
Legal publishing made the law stronger a hundred years ago. Today, the Internet
is able to continue the process.

Late
Breaking News

On January 26, 2001, West
Group announced that it had purchased Findlaw. Although Findlaw is
expected to remain an independent subsidiary of West Group, it is too early to
determine how this development will effect legal publishing on the Internet.
(See Sabrina I. Pacifici's February 15, 2001 article, A
Perspective on the West Group Acquisition of FindLaw).